Raise the Flag and Let it Talk: On the Use of External Norms in Constitutional Decision Making

10 Pages Posted: 12 Oct 2005

See all articles by Diane Marie Amann

Diane Marie Amann

University of Georgia School of Law

Abstract

Landmark judgements in 2003 prompted comments that the U.S. Supreme Court had abandoned a tradition of insularity in favour of allowing external norms to inform its internal constitutional deliberations. Viewing these judgements against the backdrop of the Court's prior jurisprudence, this essay finds a willingness to look at foreign law, as well as an unexplained selectivity with regard to the circumstances in which this is deemed to be appropriate. It identifies two threshold criteria for consultation: the presence of similar experiences; and the resolution of questions in accordance with norms derived from a shared commitment to fundamental rights. Even when both criteria are met, the Court is likely to rely only on those external norms that are imbued with internal resonance; that is, on foreign law whose application serves an American vision of what is just.

Keywords: International Law, Constitutional Law, Foreign Law, Supreme Court

Suggested Citation

Amann, Diane Marie, Raise the Flag and Let it Talk: On the Use of External Norms in Constitutional Decision Making. International Journal of Constitutional Law, Vol. 2, No. 4, pp. 597-610, October 2004. Available at SSRN: https://ssrn.com/abstract=599421

Diane Marie Amann (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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